Calcutta High Court (Appellete Side)
Sunil Srivastava vs Pranab Kumar Ghosh on 18 May, 2016
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
S.A.T. No. 3451 of 2002
Sunil Srivastava
Vs.
Pranab Kumar Ghosh
For the petitioner : Mr. Asit Kumar Battacharya
For the respondent : Mr. K.J. Tewari
Mr. Md. Youjnush Mondal
Heard on : 21.03.2016, 22.04.2016, 28.04.2016 & 29.04.2016.
Judgement on : 18.05.2016
Ashis Kumar Chakraborty, J.
This second appeal, at the instance of the defendant tenant is directed against the judgment and decree dated July 31, 2002 passed by the learned Additional District Judge, 1st Court, Alipore in Title Appeal No. 287 of 2001 thereby affirming the judgment and decree for eviction dated May 29, 2001 passed by the learned Civil Judge (Junior Division), 3rd Additional Court, Alipore in Title Suit No. 56 of 1997 filed by the father of the respondent landlord.
The facts giving rise to the present appeal lay in a narrow compass and they may be briefly set out herein below.
For the sake of convenience, the parties are referred to by their array in the trial Court. In September, 1989 the original plaintiff filed the eviction suit, being Title Suit No. 540 of 1989, before the learned first Court of the Munsif at Alipore, claiming a decree for eviction against the defendant from the suit property, comprising two rooms, kitchen, bath and privy situate in a portion of the ground floor of Premises No. 4B, Jagannath Ghosh Road, Kasba in the city of Kolkata (hereinafter referred to as "the suit property"). Subsequently, the said suit was transferred to the Court of the learned 3rd Additional Judge, Alipore and the same was renumbered as Title Suit No. 56 of 1993. The tenancy of the defendant in respect of the suit property was governed by the West Bengal Premises Tenancy Act, 1956, (in short "the Act of 1956"). One of the grounds urged by the original plaintiff for eviction of the defendant from the suit property was under Section 13(1)(k) of the Act of 1956. It was the case of the original plaintiff in his plaint that on March 01, 1986 the defendant was inducted as a tenant in respect of the suit property, at a monthly rental of Rs. 400/- exclusive of electric charges, and subsequent to the creation the said tenancy, being already in occupation of the suit property, the defendant proposed to vacate the suit property by March, 1989 which was accepted by him. Accordingly, an agreement in writing was duly executed between the defendant and himself on March 04, 1986 whereby the defendant agreed to vacate of the suit property by March, 1989, but in spite of expiry of the said period the defendant failed and neglected to vacate the suit property in spite of his repeated demands. The other ground of eviction urged by the original plaintiff in the eviction suit was that from October, 1988, the defendant defaulted in payment of rent.
The defendant contested the said eviction suit. In the written statement, it was the case of the defendant that he was put in possession of the suit property on March 01, 1986 and the said agreement dated March 04, 1986 only recorded the terms of his tenancy in respect of the suit property with effect from March 01, 1986. The defendant denied that he had at all proposed or agreed to vacate the suit premises by March, 1989. He further alleged that since he was not conversant with the bengali language in which the said agreement dated March 4, 1989 was written, the original landlord read over and explained the terms of tenancy mentioned in the said agreement dated March 04, 1986 to him and he bona fide signed the said agreement. In the written statement the defendant also denied to be a defaulter in payment of rent.
On the pleadings of the parties, the learned trial Judge framed the various issues, including whether the agreement dated March 4, 1986 is valid legal and operative in the eye of law, whether the agreement dated March 4, 1986 can be treated as a ground for eviction of the defendant from the suit premises under Section 13(1)(k) of the Act of 1956 and whether the defendant is a defaulter in payment of rent is the plaintiff entitled to a decree as prayed for.
During the pendency of the suit before the learned trial Judge, the original plaintiff died and thereafter, the suit property devolved upon his son Pranab Kumar Ghosh who was substituted in the suit as the plaintiff.
At the trial of the suit, the plaintiff himself adduced evidence as PW-1, the defendant also adduced evidence as DW-1 and a deed writer adduced evidence on his behalf of the defendant as DW-2.
With regard to the issue whether the defendant was a defaulter in payment of rent, the learned trial Judge found that although the defendant was a defaulter in payment of rent since December, 1988 to August, 1993 amounting to Rs. 24,045/- but, inasmuch as he paid all arrear rent to the plaintiff as directed by the Court in an application under Section 17(2) of the Act of 1956, he was entitled to protection under Section 17(4) of the Act.
The document of title of the plaintiff in respect of the suit property was marked as Exbt.-1, the agreement dated March 04, 1986 was exhibited as Exbt. 2 and a writ petition being W.P. No. 24115 of 1997 filed by the defendant in this Court against State of West Bengal and CESC Ltd. was marked as Exbt.-5. After considering the pleadings of the parties and on a detailed analysis of the oral and documentary evidence adduced by the respective parties, the learned trial Judge found that the defendant himself, in his written statement admitted the execution of the agreement dated March 04, 1986 (Exbt.-2), in a writ petition filed before this Court (Exbt.-5) the defendant based his claim for obtaining supply of electricity to the suit property, on the said agreement dated March 04, 1986 (Exbt.-2) and held that the said agreement dated March 08, 1986 (Exbt.-2) is a legal and valid agreement. So far as the ground of eviction urged by the plaintiff under Section 13(1)(k) of the Act of 1956, the learned trial Judge held that in the written statement the defendant himself admitted that the tenancy commenced on March 01, 1986 and the agreement dated March 4, 1986 (Exbt .2) was executed on March 04, 1986 and held that the said agreement was executed subsequent to the creation of the tenancy of the defendant in respect of the suit property and the said agreement can be treated as a ground for eviction of the defendant from the suit premises under Section 13(1)(k) of the Act of 1956. On these findings, by the judgment and decree dated May 29, 2001 the learned trial Judge decreed the eviction suit in favour of the plaintiff.
The defendant tenant carried the said judgment and decree passed by the learned trial Judge in appeal, being Title Appeal No. 287 of 2001 before the Court of the learned Additional District Judge, South 24 Parganas at Alipore. On an elaborate analysis of the material evidence which were already on record, the learned first appellate Court affirmed the finding of the learned trial Judge that the tenancy of the defendant in respect of the suit property commenced on March 01, 1986 and subsequent to the creation of the tenancy the agreement was executed on March 4, 1986 (Exbt.2) whereby the defendant agreed to vacate and hand over possession of the suit property to the plaintiff within March, 1989. The learned first appellate Court held that the defendant in his written statement admitted that the agreement dated March 4, 1986 (Exbt.-2) was read over and explained to him by the original plaintiff landlord, the defendant is an advocate and he himself relied on the same agreement for filing the writ petition before their Court (Exbt.-5) for the purpose of obtaining supply of electricity to the suit property and as such repelled the contention of the defendant that he did not understand the terms of the agreement dated March 04, 1986 (Exbt.-2). By the judgment and decree impugned in this appeal the learned first appellate Court affirmed the judgment and decree passed by the learned trial Judge.
It is the above judgment and decree passed by the learned first appellate Court which has been assailed by the defendant tenant in this second appeal. At the time of admission of the appeal the Division Bench of this Court framed the following substantial questions of law:
1. Whether that the Courts below erred in law in not holding that the tenancy runs from month to month and the alleged agreement entered into on 4th March, 1986 is an effect of the confirmation of the terms and conditions agreed at the time of induction and should be construed as the agreement executed by and between the parties simultaneously with the creation of the tenancy and further erred in not holding that the said clause does not confer any right upon the plaintiff/respondent to get an order of eviction as embodied under Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956?
2. Whether recording of the terms of tenancy in writing three days after the date of commencement of tenancy be legally construed to be a notice of surrender as contemplated under Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956?
Mr. Asit Kumar Bhattacharya, learned counsel appearing in support of the appeal, submitted that the findings of both the learned Courts below, in the present case that the said agreement dated March 4, 1986 (Exbt.-2) was entered into by the original plaintiff and the defendant subsequent to the creation of the tenancy of the defendant and that clause 1 of the said agreement recording that the defendant tenant would vacate the suit property by March, 1989 constituted the ground of eviction under Section 13(1)(k) of the Act of 1956 is vitiated by perversity resulting in serious error of law and, therefore, this Court should allow the second appeal and set aside the judgments and decrees passed by both the learned Courts below. He further contended that in any event, the said agreement dated March 4, 1986 (Exbt.-2) was not registered under the Registration Act, 1908 and as such when the said agreement was inadmissible in evidence, the learned Courts below committed a further error of law in passing the decree for eviction against the defendant tenant by accepting the said agreement to be a valid agreement. According to him, as the said agreement was not a registered agreement, none of the terms of the said agreement could even be looked into by the learned Courts below even for any collateral purpose under Section 49 of the said Act. In support of such contention, he relied on the decision of the Supreme Court in the case of K.B. Saha and Sons. (Bidi Merchants) vs. Development Consultants Limited reported in (2008) 8 SCC 564. By the said decision of the Supreme Court upheld the decision of the Division Bench of this Court in the case of K.B. Saha and Sons. (Bidi Merchants) vs. Development Consultants Limited reported in 2001(2) CHN 706. Mr. Bhattacharya further cited the decision of the Division Bench of this Court in the case of Haran Chandra Chakravarti and Anr. vs. Kaliprasanna Sarkar reported in AIR 1932 Calcutta 83(2).
However, Mr. Kumar Jyoti Tewari, learned counsel appearing for the plaintiff submitted that admittedly the tenancy of the defendant in respect of the suit property was governed by the Act of 1956 and not a lease under Section 105 of the Transfer of Property Act, 1882. According to him, when the tenancy of the defendant was not a lease under the Transfer of Property Act, 1882 there was no requirement of any registered agreement for tenancy between the original plaintiff and the defendant. Thus, Mr. Tewari submitted that in the present case when the eviction suit was filed against the defendant on the grounds under clauses (I) and (k) of Section 13(1) of the Act of 1956, none of the decisions cited on behalf of the defendant tenant has any application. Mr. Tewari submitted that in the instant case the said agreement dated March 4, 1986 (Exbt.-2) specifically recorded that the same was entered into by and between the original plaintiff landlord and the defendant tenant when the defendant was already in possession of the suit property as a tenant thereof, in paragraph 6 of the written statement the defendant tenant himself admitted that he was put in possession of the suit property on March 1, 1986 and that he put his signature on the said agreement after the terms of the said agreement in bengali script were read over and explained to him by the original landlord. He strenuously contended that after considering the pleadings of both the parties to the suit and the evidence adduced by them when both the learned Courts below came to a conclusion that the said agreement dated March 4, 1986 (Exbt.-2), containing the term that the defendant will vacate the suit property within March 1989, was an agreement subsequent to the creation of the tenancy and the said finding of the learned Courts below is not vitiated by any perversity or any error of law. He further contended that when the plaintiff landlord established the said agreement dated March 4, 1986 was entered into between the original plaintiff landlord and the defendant tenant subsequent to the creation of the tenancy and the defendant failed and refused to vacate the suit property with the expiry of March 31, 1989, the plaintiff landlord also established the ground of eviction of the defendant tenant under Section 13(1)(k) of the Act of 1956 and the judgments and decrees passed by any of the learned Courts below cannot be faulted for any error of law. In support of his contention, Mr. Tewari cited a decision of this Court in the case of Debabrata Maity vs. Pravanshu Kumar Maity reported in 2014(5) CHN (Cal) 298 delivered by Debangsu Basak, J., where His Lordship held that in case of a tenancy governed by the Act of 1956, when subsequent to the creation of the tenancy the tenant agrees in writing to vacate the tenanted property but fails to do so, the landlord is entitled to file an eviction suit against the tenant and obtain a decree for his eviction from the tenanted property under Section 13(1)(k) of the Act of 1956. Mr. Tewari further produced a copy of the order dated October 8, 2014 passed by the Supreme Court in the Petition for Special Leave to Appeal (Civil) No. 24399 of 2014, refusing to entertain a special leave petition filed by the defendant tenant against the said decision of this Court in the said case.
I have considered the pleadings of both the plaintiff and the defendant in the plaint and the written statement respectively, the material evidence on record of the appeal, as well as the submissions of both Mr. Bhattacharya and Mr. Tewari, the learned counsel appearing for the respective parties. It was the case of the plaintiff landlord in his plaint that the tenancy of the defendant was governed by the Act of 1956, on March 1, 1986 the defendant was inducted as a tenant in respect of the suit property and subsequent to the creation of the tenancy by the said agreement dated March 4, 1986 the defendant tenant agreed to vacate the suit property by March, 1989 but in spite of expiry of the month of March 1989, the defendant failed and refused to vacate the suit property and the same constituted a ground of the defendant's eviction under Section 13(1)(k) of the Act of 1956. The other ground of eviction urged by the plaintiff landlord was that the defendant defaulted in payment of rent. In his written statement, the defendant did not allege that his tenancy in respect of suit property was a lease governed by the Transfer of Property Act, 1882 or that the said agreement dated March 4, 1986 was not admissible in evidence on the ground of not being a registered document. In his written statement, the defendant admitted that he was put in possession of the suit property on March 1, 1986, that although the said agreement was in Bengali script but the terms and conditions of the said agreement were all read out and explained to him by the original plaintiff landlord and thereafter, he had put his signature on the said agreement. Even in his evidence, at the trial of the suit it was not the case of the defendant that his tenancy in respect of the suit property was a lease governed by the Transfer of Property Act, 1882 or that the said agreement dated March 4, 1986 was not admissible in evidence on the ground of not being duly registered under Section 17 of the Registration Act. When PW-1 proved and exhibited the said agreement dated March 4, 1986 was the defendant could not raise any objection to the said agreement being exhibited as Exbt.-2 of the proceeding. Further, the defendant himself filed an application under Section 17(2) of the Act of 1956 before the learned trial Judge and obtained an order for depositing the arrear rent. From the judgments of both the learned Courts below it is evident that no contention was ever raised on behalf of the defendant tenant that the said agreement dated March 4, 1986 (Exbt.-2) was not admissible in evidence or that the terms of the said agreement could not at all be considered. For all these reasons, I am unable to entertain the contention advanced on behalf of the defendant tenant that the said agreement dated March 4, 1986 was required to be registered under the Registration Act, 1908 or that the said agreement was not admissible in evidence. In the said case of K.B. Saha and Sons. (supra) relied on by the defendant tenant, the landlord sought to evict the tenant from the suit property on the ground of violation of one of the clauses in the lease deed which was compulsory registrable under Section 17 of the Registration Act, 1908 but the same was in fact not registered. Thus, the Division Bench of this Court, as also the Supreme Court held that the said unregistered lease deed produced by the plaintiff landlord was inadmissible in evidence and even no term of the said lease deed could be looked into as a ground of eviction of the defendant tenant. Even in the case of Haran Chandra Chakravarti (supra) when the defendant sought to rely on a document which was compulsorily registrable under Section 17(1)(d) of the Registration Act, the same was in admissible evidence and none of the clauses of the said agreement conferring any right on the defendant in the said case to erect pacca structure of the land could not be taken into consideration under Section 49(a) and(c) of the Registration Act as collateral purpose. Thus, I have no hesitation to hold that in the case at hand when the tenancy of the defendant was governed by the Act of 1956 which does not require any agreement in writing to be compulsorily registrable, the reliance placed on behalf of the defendant tenant on the said decisions K.B. Saha and Sons. (supra) Haran Chakvarti (supra) are thoroughly misplaced.
So far as the other ground of challenge to the judgments and decrees passed by both the learned Courts below urged on behalf of the defendant and above substantial questions of law framed by the Division Bench of this Court, I find that agreement dated March 04, 1986 expressly mentioned that the defendant was already in possession of the suit property and in his written statement the defendant admitted that he was put in possession of the suit property as a tenant thereof on March 1, 1986, the terms and conditions containing the agreement dated March 04, 1986 (Exbt.-2) were read out and explained to him by the original plaintiff landlord and thereafter he put his signature on the said agreement. From the writ petition (Exbt-5) being the filed by the defendant himself before this Court it appears that for the purpose of obtaining supply of electricity to the suit property, he himself relied on the said agreement dated March 04, 1986 (Exbt.-2). However, in his evidence adduced at the trial of the suit, the defendant sought to make out a case that he is a hindi speaking person and he cannot read bengali and the contents of the said agreement (Exbt.-2) were never explained to him and he signed the said agreement (Exbt.-2) on the date of his induction as a tenant in the suit property. Now, considering the pleadings of both the parties and on an elaborate appreciation of the evidence adduced by both the parties to the suit, the learned Courts below have held that the said agreement dated March 4, 1986 is valid, legal and operative in the eye of law and the term contained therein that the tenant will vacate the property within March, 1989 can be invoked as a ground for eviction of the suit property under Section 13(1)(k) of the Act of 1956. The defendant has neither been able to demonstrate, nor do I find that such findings the learned Courts below are vitiated either by any perversity or any error of law. It is the settled law that when the concurrent findings of fact by the learned Courts below are not vitiated by any perversity or error of law, this Court in second appeal should not interfere with the decisions of the learned Courts below.
In the facts of the present case, I find the ratio of decision of this Court delivered by Debangsu Basak, J. in the case of Debabrata Maity (supra) that when subsequent to the creation of tenancy governed by the Act of 1956 the tenant has agreed in writing to vacate and deliver vacant possession of the tenanted property to the landlord, if the tenant fails to do so the landlord is entitled to obtain a decree for eviction against the tenant under Section 13(1)(k) of the 1956 Act is squarely applicable in this case.
For all the foregoing reasons, I do not find any merit in this appeal and accordingly, the same stands rejected. The judgments and decrees passed by both the learned Courts below stand affirmed.
The appellant is directed to hand over vacant and peaceful possession of the suit property, more particularly described in the schedule to the plaint filed in Title Suit No. 56 of 1993 within August 31, 2016, failing which the plaintiff shall be entitled to execute the decree.
The department is directed to expeditiously draw up the decree.
However, there shall be no order as to costs.
Urgent certified copy of this judgement, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)